Rhodes v. Linderman — 43 N.Y. St. Rep. 520

Majority

p. 520

Dana Rhodes, App’lt, v. R. Burns Linderman, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

Contempt—Supplementary proceedings.

After the recovery of the judgment in this action against him, but before issue of execution, defendant assigned to his wife all his right, title and interest in an insurance policy on his father’s life, in payment of an indebtedness due to her. After service of an order in supplementary proceedings upon him, he received a check for his interest in said policy, endorsed the same and deposited it in bank to the credit of his wife. Held, that he was not guilty of contempt in so doing; that if the money so recéived did not belong to him, but was the property of his wife, there was no violation of the injunction order.

Appeal from an order of the county judge of Cortland county, denying'appellant’s application to punish the respondent for contempt in violating an injunction contained in an order for his examination in proceedings supplementary to execution, adjudging that he was not guilty of such contempt, and awarding him costs.

* On the 9th of April, 1887, the appellant obtained a judgment against the respondent for $73.56 damages and costs before a justice of the peace of the town of Groton, Tompkins county, ¡N". Y. The summons was personally served upon the respondent. A transcript of this judgment was filed, and the judgment duly docketed in the office of the clerk of the county of Tompkins on the 26th day of January, 1891. On February 4, 1891, a transcript of the judgment docketed in Tompkins county clerk’s office was filed, and the judgment docketed in the office of the clerk of Cortland county. An execution upon this judgment against the property of the respondent was thereupon issued out of the county court of Cortland county, delivered to the sheriE of that county, being the county where the respondent then resided, and the sherifl returned said execution wholly unsatisfied on February 4, 1891. On the same day the appellant obtained an order to examine the respondent in proceedings supplementary to execution, which was granted by the county judge of Cortland county. This order was served upon the respondent, whd appeared before a referee appointed to take his examination. The order also forbade the respondent from “ making or suEering any transfer or other disposition, or the interference with the property of R. Burns Linderman, the judgment debtor, or in which he has any interest, legal or equitable, and not exempt from levy and sale on execution until further directions in the premises.”

The respondent was examined before such referee and the examination was adjourned from time to time until the 26th of February, when the appellant obtained an order from said county judge requiring the respondent to show cause why be should not be punished for contempt in disobeying the injunction contained in the order for the examination of the judgment debtor.

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On the return of such order, the respondent appeared and filed ' a verified answer denying the contempt The appellant then obtained an order from the judge referring the matter to W. D. Tuttle, Esq., as a referee to take the proofs, hear the allegations and report the same to the court with his opinion as to whether the respondent was guilty of the alleged contempt In pursuance of this order the referee took the evidence and reported the same to the court with his opinion thereon, which was to the effect that ' the respondent was not guilty of contempt. The respondent upon the evidence, affidavits and proceedings, then made application to the county judge to be discharged and acquitted of the alleged contempt, and for costs. Upon such application the appellant appeared and asked the judge to consider the whole matter as if no report had been made by the referee, which the judge proceeded to do, and made findings of fact and conclusions of law at appellant’s request.

Among others, the judge found the following facts:

“IV. That on or about October 3, 1890, defendant’s father, D. V. Linderman, died, leaving an insurance upon his life, of which $1,500 was made payable and belonged to defendant.

“ V. That on or about the 15th day of October, 1890, the defendant herein assigned’and transferred all right, title and interest in the insurance policy of $2,000 on his father’s life to his wife, Emma B. Linderman.

“VI. That on or about the 15th day of October, 1890, the defendant was indebted to the said Emma B. Linderman, and that he assigned his interest in said insurance policy and the money due thereon to her in payment of the debt which he owed her.

“ VII. That upon the 6th day of February, 1891, the said $1,500 had not been paid by the insurance company nor received by the defendant.

“VIII. That upon the 6th day of February, 1891, the order in supplementary proceedings marked: Ex. A., April 9, 1891, W. D. T., referee,’ was served upon the defendant.

“IX. That upon the 18th day of February, 1891, the defendant received by check from the said insurance company, through its agents, the sum of $1,500, being the life insurance in said policy made payable to the defendant, and that the money from said check was passed to the credit in the bank of Emma B. Linderman.

“ That at that time the defendant was not entitled to or did not own said money which was then due from the insurance company on the life of his father, but that at that time said money was the property and belonged to the said Emma B. Linderman.

“ X. That for about a year and a half prior to the death of the said D. V. Linderman, said Emma B. Linderman paid the premium on the insurance of said $2,000, and had possession of the policy; that the same had been assigned and delivered to her by the said defendant, and his father, and she had possession of it, and the avails thereof at the death of said Linderman to the extent of $1,500 were payable and to be applied on this indebted

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ness to her in accordance with an assignment to her previously made.

“ XI. At the request of the plaintiff’s attorney, I further find as a mattér of fact that upon the return of the motion in these proceedings, dated May 19, 1891, the attorney for the plaintiff requested the court to return all the proceedings had before the referee, William D. Tuttle, Esq., to said referee with instructions that lie find the facts upon which he based his decision and report in these proceedings.”

As a conclusion of law the judge held “that the defendant, R. Burns Linderman, is not guilty of contempt or violation of the order of February 4, 1891, as alleged and set out in the order to show cause and affidavit on which the order was granted.” He also directed that an order should be entered in accordance with such finding, and that the defendant should have ten dollars costs of his motion and his disbursements in the proceeding, and the disbursements were allowed as follows; Referee’s fees, thirty dollars; witness’ fees, $3.96; serving notice of motion, two dollars; amount, $35.96.

G. M. Stoddard and S. D. Halliday, for app'lt; T. H. Courtney, for resp’t.

The basis of the alleged contempt was that the respondent had refused to obey the injunction order in that on the 18th day of February, 1891, he received from the Mutual Relief, or the Rochester Mutual Insurance Company, the sum of $1,500 in money, and on the same day disposed of the same by paying the whole thereof to his wife. The order appealed from should not be disturbed on the ground that the facts as found by the learned county judge were not sustained by the evidence. An examination of the appeal book shows that the evidence was sufficient to justify the findings made.

- Assuming the facts as found, it becomes quite manifest that the respondent was not guilty of contempt in receiving the check from the insurance company, endorsing it, and procuring the same to be placed to the credit of his wife at the bank. If, as was found, the $1,500 thus credited and received upon the policy did not belong to the respondent, but was the property of his wife, there was no violation of the injunction order. In Beard v. Snook ( 47 Hun, 158 ; 13 St. Rep., 233 ), this court held that to support a conviction for contempt in disobeying an injunction restraining the transfer of property in proceedings supplementary to execution, it must be proved that the title to the property transferred was in the accused. The same doctrine was again held in Duffus v. Cole ( 39 St. Rep., 838 ).

We think the order of the judge denying the appellant’s application to punish the respondent for contempt was proper and should be upheld.

We find no error in the award of costs against the appellant. Costs were in the discretion of the judge. On the application of the appellant the judge granted an order to show cause why the respondent should not be punished for contempt.- On its return,

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on motion of the appellant, the judge referred the issue made by the respondent’s answer to a referee in the face of the respondent’s objection. Thus, the motion and reference were made and had on the appellant’s application. He failed in both. The court then allowed the respondent ten dollars costs of the motion for his discharge, the disbursements arising from the hearing before the referee in the proceeding for contempt, and two dollars for serving notice of motion.

Under these circumstances we fail to discover any abuse of discretion on the part of the learned county judge.

The order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.